Consent should be carefully considered when deciding not only what offence to charge but also whether it is in the public interest to prosecute. Sometimes consent is given, or appears to be given, i.e. ostensible consent, but it is not true consent in the particular context in which the offending has occurred, for example in cases where a young complainant has been groomed. It is important to make a distinction between consent and mere submission, acquiescence or compliance.
Toolkits on consent have been created to assist investigators, prosecutors and advocates when considering issues in relation to consent and evaluating the evidence in a case.
Prosecutors are advised to view ‘Consent in Sexual Cases' - which can be accessed via the Prosecution College.
The Act sets out the offences requiring the prosecution to prove absence of consent at sections 1-4. They are:
In relation to these offences, a person (A) is guilty of an offence if (s)he:
In relation to many other offences there is no requirement to prove an absence of consent. Only the act itself and the age of the victim/complainant or other criteria need to be proved. They include:
Section 74 defines consent as “if he agrees by choice, and has the freedom and capacity to make that choice”. Prosecutors should consider this in two stages. They are:
Assuming that the complainant had both the freedom and capacity to consent, the crucial question is whether the complainant agrees to the activity by choice.
Prior to the 2003 Act there was no statutory definition of consent but the section 74 definition is commonly referred to in pre 2003 Act cases as a guide to how the jury should approach the issue of consent.
Deciding whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents (subsection (2) of sections 1 - 4). It is likely that this will include a suspect’s attributes, such as disability or extreme youth, but not if (s)he has any particular fetishes.
The 2003 Act abolished the Morgan defence of a genuine though unreasonably mistaken belief as to the consent of the complainant. The defendant (A) has the responsibility to ensure that (B) consents to the sexual activity at the time in question. It will be important for the police to ask the suspect in interview what steps (s)he took to satisfy him or herself that the complainant consented in order to show his or her state of mind at the time.
The test of reasonable belief is a subjective test with an objective element. The best way of dealing with this issue is to ask two questions.
There is no requirement to communicate lack of consent. In R v Malone [1998] 2 Cr App R 447, the Court of Appeal confirmed that the actus reus of rape imported no requirement that the complainant demonstrate or communicate to the defendant a lack of consent. What was required was some evidence to be put before the jury of lack of consent, and the nature of that evidence depended on the circumstances of the case. Such evidence may include that the complainant was incapable of consenting or knowing what was happening due to the influence of drink or drugs.
The issue of capacity to consent is particularly relevant when a complainant is intoxicated by alcohol or affected by drugs. Prosecutors must be familiar with a number of key cases on this topic.
A complainant does not consent if they are incapacitated through drink. The prosecutor should consider carefully whether the complainant retains the capacity to consent R v Bree [2007] EWCA Crim 804 paragraph 34.
A complainant does not need to be unconscious through drink to lose their capacity to consent. Capacity to consent may evaporate before a complainant becomes unconscious. A prosecutor must consider the complainant’s state of mind at the time of the alleged assault. R v Bree paragraph 34.
Evidence of a lack of recollection of events cannot of itself be determinative of issues of consent and capacity.
Issues of consent and capacity to consent to intercourse in cases of alleged rape should normally be left to the jury to determine. R v Hysa [2007] EWCA Crim 2056.
See also R v Khamki [2013] EWCA 2335 for directions in relation to consent and intoxication and R v MA, PC and RS (unreported January 2015) for a useful summary of preceding cases.
Complainant’s absence of memory In R v Tambedou [2014] EWCA Crim 954 the Court of Appeal held that the complainant’s evidence that she could not remember was not sufficient for the judge to remove the case from the jury.
Relevance to consent issue of a provable lie told by the defendant regarding whether sexual intercourse took place. In R v Hysa [2007] EWCA Crim 2056, the Court of Appeal the jury is entitled when considering the issue of consent to bear in mind any lies, if that is what the jury find them to be, told by the defendant as to whether he had sex with the complainant on the night in question. If the jury decided he lied because he knew the complainant was too drunk to consent or knew that she in fact did not consent, that would undoubtedly help them in their task of assessing whether he raped her.
In accordance with Section 79 (2) Sexual Offences Act 2003 penetration is a continuing act from entry to withdrawal. Where the defendant lacks the mens rea for rape at the initial moment of penetration he might commit the offence of rape if he becomes aware of the complainant’s lack of consent at any point thereafter and does not at once desist and withdraw. See New Zealand Privy Council case of Kaitamaki v The Queen [1985] AC 147.
A person is unable to consent to the infliction of harm that results in ABH or other more serious injury, for the purposes of obtaining sexual gratification: s.71 Domestic Abuse Act 2021, which codifies the principle set out in the case of R v Brown [1993] 2 WLR 556.
Thus, a defendant will be unable to rely on a victim’s consent to the infliction of such harm as part of any so-called ‘rough sex’ defence, and will remain liable to prosecution for ABH or GBH. An exception remains, in relation to the transmission of sexually transmitted infections (STIs) where, in certain circumstances, a person may consent to the risk of acquiring an STI.
The law applies in all situations and is not limited to those which might also amount to incidents of domestic abuse.
In cases involving the alleged grooming of vulnerable complainants such as youths, apparent consent to sexual activity may not amount to consent in law. In these circumstances determining whether to select; consensual or non-consensual offences may be complex.
R v Ali and Ashraf [2015] EWCA Crim1279 is of considerable assistance when considering whether to charge non-consensual offences and used the important term “context is all important”. In this case, some guidance was given on how consent should be approached in cases of child sexual exploitation:
Whilst in many cases the complainant's evidence on the issue of consent may be determinative, there will be situations where he or she may have a limited or distorted appreciation or understanding of their role in sexual relations and the true nature of what occurred. In these situations, the prosecution is not obliged to call overt evidence from the alleged victim to the effect that he or she did not consent.
One of the consequences when vulnerable people are groomed for sexual exploitation is that compliance can mask the lack of true consent. In such a case, a young and immature person may not understand the full significance of what he or she is doing. They may be placed in a position where they are led to acquiesce rather than give proper or real consent.
In a case where a vulnerable or immature individual has been groomed, the question of whether real or proper consent was given will usually be for the jury unless the evidence clearly indicates that proper consent was given. R v Hysa [2007] EWCA Crim 2056
When reviewing cases of child sexual exploitation, prosecutors must consider:
There are a number of additional cases involving children where the issue of consent was considered.
In R v PK and TK [2008] EWCA Crim 434 the Court of Appeal considered the issue of whether true consent existed when a young homeless girl submitted to sexual intercourse in exchange for money to buy food. The question for the Court of Appeal was whether there was sufficient evidence to show a lack of consent. The Court reached the conclusion that in the context of this offence there was sufficient evidence. The court also considered and disapproved of the use of the phrase ‘willing submission’ to describe consent in these circumstances.
Not all grooming will vitiate consent. In R v Sean Robinson [2011] EWCA Crim 1916, the Court Appeal held that in circumstances where, due to immaturity, the complainant does not, or may not, have the capacity to understand the full significance of what she is doing, and in particular, where there is evidence of acceptance or acquiescence, then it would be open to the jury to infer she unwillingly went along with the acts, which she did not in fact wish to engage in. This judgment highlights aspects of the evidence in this case which, it was said, could be relied on to infer the acquiescence or acceptance of the complainant rather than positive consent.
In R v C [2012] EWCA Crim 2034 the Court of Appeal considered the situation where sexual abuse continued into adulthood. The Court of Appeal approved the approach taken by the prosecution. The prosecution put its case, not on the basis that the complainant had been groomed in relation to the offences committed whilst an adult, but rather on the basis that the evidence of prolonged grooming and potential corruption of the complainant when she was a child, provided the context in which, the evidence of her apparent consent, after she had grown up, should be examined and assessed.
Section 75 lists the circumstances in which rebuttable evidential presumptions about the absence of consent apply. If the defendant did the relevant act, as defined in section 77 (the sexual activity within sections 1 - 4), and any of the circumstances specified in section 75(2) existed, and the defendant knew they existed, then: (i) the complainant is to be taken not to have consented and (ii) the Defendant is taken not to have reasonably believed that the complainant consented unless in either case, sufficient evidence is adduced to raise an issue as to the contrary.
The circumstances set out in section 75(2) are:
The evidence raising an issue as to consent and the defendant’s reasonable belief in consent can derive from any source - from the defendant or the cross-examination of prosecution witnesses. Once it has been adduced, no direction under section 75 is then required – the jury decide the issues in respect of consent on the evidence, in the usual way.
Section 76 provides two conclusive presumptions that the complainant did not consent to the activity and the defendant did not reasonably believe that the complainant consented.
The prosecution must show that the defendant did the relevant act and that either of the circumstances in subsection 2 applies:
The first presumption, has been considered in several cases:
The statutory definition of consent in Section 74 was considered in a number of cases where ostensible consent was considered not to be true consent. The key cases in this area are:
These are cases in which it is said that ostensible consent was not true consent, either:
The High Court and the Court of Appeal considered the application of section 74 SOA 2003 in the cases highlighted above where ostensible consent was said to be vitiated. The judgments identified three sets of circumstances in which consent to sexual activity might be vitiated where the ‘condition’ was breached.
In each case the courts considered the sexual autonomy of the complainant and decided that the complainant did not consent to the sexual activity in the terms of section 74 of the 2003 Act, namely she did not agree by choice and have the freedom [and capacity] to make that choice.
The key points from these cases are:
Although the three cases cited above are said to give rise to the "developing concept of conditional consent" and are considered together in the guidance in this context, they do, in fact, concern different situations. Assange and F are cases where the complainant imposed a specific condition on the giving of her consent to the sexual acts. Those being, in Assange, that the offender should wear a condom throughout the act of intercourse and, in F that he would not ejaculate inside the vagina during the act of intercourse. McNally, on the other hand, concerned a deception perpetrated by the offender during the acts of penetration (and indeed for some considerable time before), namely that she was a man. Whereas Assange and F cases were concerned with an express condition, the case of McNally dealt with a material deception as to gender by the suspect, which was deemed to vitiate consent.
It is important to note that not every case will amount to rape where a condom is not worn even though there was a prior agreement to use one. Prosecutors must consider the overall context in which the offence is alleged to have taken place and the extent to which the actions of the defendant negate the freedom to choose of the complainant or their sexual autonomy. Similarly, every instance where the suspect ejaculates inside the vagina contrary to the wishes of the complainant will not necessarily vitiate consent.
In R v Lawrance (Jason) [2020] EWCA Crim 971, the Court of Appeal considered the circumstances in which deception was capable of vitiating ostensible consent in sexual offences. It clarifies two areas of law:
As set out in the Code for Crown Prosecutors, prosecutors must apply the principles of the European Convention on Human Rights, in accordance with the Human Rights Act 1998, at each stage of a case. Prosecutors are also bound by the duties set out in the Equality Act 2010. This is especially relevant when making decisions that impact on transgender suspects. Prosecutors should address suspects according to their presented gender by using the correct gender and pronouns in all documentation.
Prosecutors reviewing sexual offence cases involving suspects who are transgender need to be aware of, and sensitive to, all the relevant circumstances and should ensure the police supply as much information as possible in order to properly inform their decision making. For example prosecutors will need to know the suspect’s position in relation to the Gender Recognition Act 2004 (GRA).
When considering the issue of consent as part of the evidential stage of the Full Code Test prosecutors should be aware that the Court of Appeal in Justine McNally v R [2013] EWCA Crim 1051 determined that “deception as to gender can vitiate consent” (paragraph 27).
Whether there has been deception as to gender will require very careful consideration of all the surrounding circumstances including:
When considering the public interest stage of the Full Code Test prosecutors should, in addition to considering the questions set out at paragraph 4.12 of the Code, take into account:
The Code for Crown Prosecutors is a public document, issued by the Director of Public Prosecutions that sets out the general principles Crown Prosecutors should follow when they make decisions on cases.
This guidance assists our prosecutors when they are making decisions about cases. It is regularly updated to reflect changes in law and practice.